Archive for July, 2011

We have many confirmed reports that yesterday, July 28, 2011, the University of Northern Virginia’s (UNVA) campus in Annandale was raided by Immigration and Customs Enforcement (ICE) and Federal Bureau of Investigations (FBI) agents, seeking and seizing documentation relating to UNVA’s issuance of F-1 foreign student visas and UNVA’s compliance in the F-1 visa program.

According to reports, federal agents seized significant amount of boxes with paper, hard drives from administrative computers and even waste baskets. ICE confirmed the UNVA raid in a statement, “Today, officials from ICE’s Student and Exchange Visitor Program (SEVP) served UNVA with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. UNVA students should call the SEVP Response Center at 703-603-3400 for guidance.”

Similarity to TVU Raid

The UNVA raid of yesterday is very similar to the raid federal agents conducted on Tri-Valley University (TVU) earlier this year. We have written in the past about TVU’s story and the importance of maintaining good “F-1 practices” both by the school and by the foreign students whose status and ability to remain in the U.S. is affected by the closure of their school. Some of our readers may remember that after TVU was raided, all of its F-1 foreign students were deemed to be out of status and the TVU president was indicted on a number of federal offenses. While there are no charges filed, the UNVA raid bears similarities to the TVU raid and subsequent closure. It is important to note, however, that as of now, UNVA continues to operate normally and students can continue to attend classes.

UNVA F-1 Students May Need to Seek Alternatives

While it is very early in the investigation process, indications are that ICE would seek to revoke UNVA’s ability to participate in the SEVP program, which would mean that all F-1 students currently enrolled in UNVA would be out of status. If ICE takes the same approach as it did with TVU and if ultimately UNVA is closed down, it is possible that current UNVA students may have very difficult time even transferring their I-20 to a new school.

There are approximately 2,400 or so F-1 international students enrolled in UNVA and the U.S. government has indicated that those UNVA F-1 foreign students who are not attending classes and are out of status and must leave immediately. Students who are attending UNVA and are in full compliance with their F-1 status (i.e. attending classes and not otherwise violating the terms of the F-1 program) should be still considered to be in valid status, at least for now and for as long as UNVA’s ability to sponsor F-1 visas is not revoked. As of now, UNVA F-1 students should also be able to transfer their SEVIS I-20 record to another school.

Conclusion

It the TVU story provides any history and a roadmap to ICE’s approach, it is likely that if ICE/FBI find irregularities of the kind found at TVU, then UNVA’s ability to admit foreign students would be revoked and the 2,400 or so foreign students’ status would be terminated. Our office will continue to monitor developments on this case as it may affect a very high number of individuals and will continue providing updates on our website and through our weekly newsletter.

We have also committing the resources to providing individual phone consultations to allow affected F-1 students to assess their options. We offer fast and secure online booking of legal consultations. We also offer same-day urgent phone consultations.

It is interesting to note that for the relevant period, there were 45,000 PERM applications filed. According to DOL, the number of FY2011 filings represents a significant 63% increase over PERM filings compared to FY2010. The vast majority, 43,179 were filed electronically and 1,905 were mailed-in.

Education Level

DOL provides a breakdown of the education level of active PERM cases. Since DOL counts only active, under review cases, the baseline number is a total of 22,200 PERM cases. Out of these active cases, 37% require a bachelor’s degree, 37% require a master’s degree, 4% require a doctorate degree, with the balance distributed among Associate degree, High School, Other or no degree requirement (yes, it is possible to file a PERM for such cases, and they represent 12% of the active PERM cases).

Processing Status

DOL also provides a breakdown of the processing status of active PERM cases. As of May 31, 2011, these cases were 22,200 and 44% of them were in Analyst Review stage, 29% were in Audit, 24% were in Appeal, and 3% were in Sponsorship/Backlog Elimination stage.

Current PERM Processing Times

The processing times, as reported by DOL as of June 27, 2011, are as follows:

Regular processing: April 2011. DOL is processing PERM applications with priority dates of April of 2011. This suggests that there is a slight delay in the regular PERM processing. Accordingly, regular PERM processing times should be between three and four months. Our office has experienced PERM approvals consistent with this timeline and we can confirm it.

Audited applications: November 2010. DOL is processing PERM audits which have a priority date of November 2010. This is a very notable improvement in this category in comparison to prior months. In comparison with the April 2011 PERM report, this category’s processing time has advanced (improved) by a net of eleven (11) months from December 2009 to November 2010. Accordingly, audited PERM applications are processed approximately 7 months after the initial PERM was filed and the priority date established. We welcome this sign of improvement in PERM audit processing times.

Appealed applications: November 2008. DOL is processing PERM appeals which have a priority date of November 2008. There is no change in this category in comparison to prior months. Accordingly, PERM appeals are processed approximately 30 months after the initial PERM was filed and its priority date established.

“Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline. However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the “government error” queue or under the regular appeal queue. As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response. If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue. If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

We continue to praise DOL as it has done a terrific job in eliminating the PERM backlog to 3-4 months and, more significantly, the audit backlog from 20+ months to 7 months. We also note that the DOL OFLC statistics report suggests a significant (63%) increase in new PERM filings. As a result, we expect that regular PERM processing times increase over the coming months.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you. Also, we will continue monitoring the PERM processing times and analyze any updates. Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

The USCIS Ombudsman office has released a report and a recommendation to USCIS regarding changing policies with respect to I-765 Application for Employment Authorization Document (EAD) cases.

The Problem

Many employers and individuals who rely on EAD cards for employment find it frustrating that there are no reliable processing times for the EAD cards. For most employment with EAD cards, employment is authorized only when the employee has a valid EAD card. In other words, if an EAD card expires and a renewal is not filed on time (with or without fault of the employee) or if the EAD application takes long time to be approved, then the employee, upon expiration of the EAD card and while waiting for the renewal to be approved, must stop working. This brings a lot of difficulty to employees and employers.

USCIS is required to issue EAD cards within 90 days. However, often USCIS is not able to do so. Several years ago, local service centers were permitted to issue interim cards for EAD applications pending for more than 90 days. This option is not currently available and the only redress an EAD applicant has is to seek expedited processing of his or her EAD application. Expedited processing, however, is discretionary and unpredictable.

The Ombudsman’s Recommendations

To address some of the problems with the current EAD application process, the Ombudsman makes several recommendations to USCIS, after making a very thorough, interesting (for some) and somewhat critical review of the current EAD application review framework.

The Ombudsdam report, after reviewing the currently-available options for EAD applicants, and after concluding that such options are inadequate, makes five recommendations.

Establish methods at local USCIS offices where EAD applications can be resolved;

Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;

Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;

Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and

Issue replacement EADs with validity dates beginning on the date the old EAD expires.

Conclusion

As our office handles many EAD applications for a number of categories, many of which remain pending close to the 90-day period, and having to do a number of expedited processing EAD applications, we certainly realize that the current system does not serve the needs of employers and employees very well. It is very difficult to see how in these challenging economic times, when an employee has to stop working and potentially lose his or her job due to delayed EAD processing. As a result, we welcome the Ombudsman’s recommendation to USCIS and hope that USCIS would consider all of the proposed changes.

In the meantime, and even if the recommendations are fully adopted, we remind our clients and readers to always apply for EAD as soon as possible, and ideally about 120 days before the expiration date of the current EAD card. Please contact us if we can be of any help.

The Department of State has enabled the Status Check website which allows participants in the “green card lottery” to check whether their entry has been selected. At the same time, we wish to note that the Department of State does not notify winners by email so any email notifying of a winning green card lottery entry and asking for payments is likely fraudulent.

DV-2012 Lottery Glitches

Many of our readers are aware of the glitches and the controversy surrounding this year’s DV lottery. In May, the Department of State issued a statement that they are voiding all DV-2012 lottery results due to a computer glitch which caused the winning entries to be picked in a non-random fashion. By the time the results were voided, many who thought they were “winners” were sorely disappointed by the outcome. A lawsuit challenging the Department of State was filed seeking to have the initial results certified as valid.

The Department of State pressed ahead with their plans to redo the DV-2012 lottery in mid-July. After the lawsuit was dismissed earlier this month, and after the Department of State ran the lottery again (presumably correctly and randomly this time), the results are now available.

Conclusion

We wish to congratulate those who have been selected for the DV lottery this year. At the same time, we wish to remind these winners that they should follow the application instructions very closely and promptly because the number of winning entries is higher than the actual number of green cards available; as a result, not all winners actually receive a green card. Timing and following the proper procedures becomes important.

Our office stands ready to assist in the preparation of the documents, either with the National Visa Center or with US Citizenship and Immigration Service for those green card lottery winners. If you wish to discuss how we can help, please contact us.

USCIS has just announced that they are launching a new website which is intended to provide new data reports covering agency performance in a number of areas. The website can be accessed at http://www.uscis.gov/data/.

Data Reports Available

Currently, there are ten data sets available on the website. Four of the data sets will be updated monthly; they include processing times and performance data for Form N-400, Application for Naturalization; performance data for Form I-485, Application to Register Permanent Residence or Adjust Status; and statistics on Form I-914, Application for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant Status. Forms I-914(T) and I-918(U) are used for victims of trafficking and victims of crime.

Additionally, information about the total number of receipts and approvals by quarter and year-to-date for all form types will be published quarterly.

Conclusion

While we applaud USCIS’s efforts to provide more information and transparency to the general public, and while we recognize that this website makes an initial step towards giving the general public an overview of USCIS’s operations, the information published on the website is somewhat limited in scope. We hope that USCIS would use this website as an opportunity to provide more information about its operations, processing times and procedures.

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1. As of July 15, 2011, USCIS has received approximately 20,500 H-1B petitions counting toward the 65,000 cap (an increase of 3,100 over previous three weeks). Similarly, as of July 15 , there were 12,800 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 1,500 over the previous three weeks).

H-1B Quota Trends – Slow Rate of Filings; H-1B Caps Are Likely to Remain Open for Several Months

The numbers, as just reported for the past three weeks, show that the rate of filing of new cap-subject H1B filings is fairly slow, and remaining steady. We have been noticing a weekly rate of filing of 1,000 to 1,500 in the regular H-1B cap and 500-700 in the US Masters H-1B cap. More than three months into this H-1B cap filing season, we can draw some preliminary conclusions on how long the cap would remain open: given the rate of filings for the past several weeks and since the H-1B cap opened, it is likely that the H-1B cap would remain open well into the rest of the year, and perhaps even well into 2012.

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases. The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers. The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public. As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices. Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2011. Read the full AAO Processing Times report.

The AAO processing times have been going up slightly over the past few months. We notice increased delays in AAO processing times across almost all types of cases. Unfortunately, increasing filings and lack of adequate increase in staffing has led to very long AAO appeal wait times.

As many of our readers and clients are aware, the U.S. Citizenship and Immigration Service (USCIS) provides some tools for applicants to obtain case processing information. The online case status check is one of them.

In addition, USCIS posts each month a schedule of the standard processing times for most of the types of cases being processed at the different USCIS offices. The Processing Times Schedule is very helpful as it provides at least some overview of how long an application would remain pending. While the posted processing times are updated only once a month (on the 15th of each month) and while the data is often outdated by a few months, nonetheless, it provides a useful source of general information on how long a USCIS case should take.

How Does USCIS Calculate Processing Times?

For each type of application or petition, USCIS has established processing time goals. Specific processing time calculations are based on the number of months of application or petition receipts that comprise the level of active pending cases on hand within the agency. Processing times are posted 45 days after they are reported from the field offices or service centers to allow for a quality control process that ensures the integrity of the data.

Additionally, USCIS does not distinguish between premium and regular processing and calculates processing times together. As a result, posted processing times for cases which are premium processing-eligible may be skewed because the posted time reflects the processing time for premium processing cases (often less than 15 days) which is certainly shorter than the regular processing time for the same case type.

Similarly, cases with requests for evidence (RFEs) and notice for intent to deny or revoke (NOID/NOIR) are not considered active cases and are not calculated under these processing times.

Why Are Processing Times Posted for Certain Applications and Petitions and Not Others?

Only a few applications for immigration benefits are not included in the processing time tables, and this is primarily due to the low volume of applications received and related customer inquiries. Additionally, some forms are not considered applications for immigration benefits because they only provide supporting evidence, so they are not included in the processing time tables.

When Are Actual Processing Times Posted Versus Processing Time Goals?

Processing time goals are posted if an office is processing a particular type of application in less time than the stated processing time goal. Sometimes the volume of cases USCIS receives is larger than expected, which prevents USCIS from achieving the processing time goals. In these cases, a date will be listed in the processing time table. Customers can compare their application or petition receipt notice dates to this posted date, which represents the date of the last application or petition processed by the USCIS location handling the case, to gauge potential wait time.

The U.S. State Department just released the August 2011 Visa Bulletin which is the eleventh Visa Bulletin for the FY2011 fiscal year. The major headline in the upcoming month’s bulletin is the continued significant forward movement in EB-2 China, EB-2 India, Other Workers and FB2A categories.

Summary of the August 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2011 Visa Bulletin with respect to employment-based petitions:

EB-1 remains current across the board.

EB-2 ROW (Rest of World), Mexico and Philippines remain current while EB-2 China and EB-2 India both move forward by almost five (5) weeks to April 15, 2007.

EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to November 1 , 2005, EB-3 China moves forward by only one (1) week to July 8, 2004, while EB-3 India moves forward by one (1) month to June 1, 2002. EB-3 Mexico moves forward by over five (5) months to November 1, 2005.

The “other worker” category remains unchanged (again) at April 22, 2003 for China. It moves forward by over five (5) months to May 1, 2005 for ROW, Mexico and Philippines. It moves forward by one (1) month to June 1, 2002 for India .

Summary of the August 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the August 2011 Visa Bulletin with respect to family-based petitions:

FB1 remains unchanged across all regions at May 1, 2004 for ROW, China and India, at March 8, 1993 for Mexico and at April 15, 1996 for Philippines.

FB2A moves forward by four (4) months to July 22, 2008 for ROW, China, India, and Philippines. FB2A Mexico moves forward by four and a half (4.5) months to June 1, 2008.

FB2B ROW, China and India remains unchanged at July 1, 2003. FB2B Mexico moves forward by only one (1) week to October 1, 1992. FB2B Philippines moves forward by two (2) months to December 1, 2000.

The slow forward movement across many employment categories continues, as expected. Although we see continued movement in EB-2 India and China, the movement this month is slowing down after some substantial movement over the past couple of months. The EB-2 India and EB-2 China movement has been due to the carryover of visa numbers from the EB-1 category (also see note below). Positive news is that EB-3 India has moved forward by one month (compared to only one week for the past several months).

We continue to see the FB2A category move forward, after the significant retrogression over the past several months. We wish to reiterate that the forward movement in FB2A is expected to slow down over the next few months, according to indications from the State Department. Unfortunately, due to strong demand, FB1 category remains unchanged, for a fourth month in a row, after it retrogressed by 8 months during the April 2011 Visa Bulletin. This is due to heavy demand in the FB1 category which is expected to continue and further lack of movement (or backward movement) in FB1 is possible.

Further Updates and NewsWe invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the August 2011 Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions on when a particular priority date may become current.